[PDF] Human Rights And Judicial Review In Australia And Canada eBook

Author : Janina Boughey
Publisher : Bloomsbury Publishing
Page : 321 pages
File Size : 43,54 MB
Release : 2017-06-15
Category : Law
ISBN : 1509907882

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It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and have been a key driver of the modern expansion in judicial oversight of the executive arm of government. A number of commentators have pointed to Australian administrative law as evidence for this 'righting' hypothesis. They have suggested that the fact that Australia is an outlier among common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights explains why Australia alone continues to take an apparently 'formalist', 'legalist' and 'conservative' approach to administrative law. Other commentators and judges, including a number in Canada, have argued the opposite: that bills of rights have the effect of stifling the development of the common law. However, for the most part, all these claims remain just that – there has been limited detailed analysis of the issue, and no detailed comparative analysis of the veracity of the claims. This book analyses in detail the interaction between administrative and human rights law in Australia and Canada, arguing that both jurisdictions have reached remarkably similar positions regarding the balance between judicial and executive power, and between broader fundamental principles including the rule of law, parliamentary sovereignty and the separation of powers. It will provide valuable reading for all those researching judicial review and human rights.

Author : Matthew Groves
Publisher : Bloomsbury Publishing
Page : 448 pages
File Size : 48,52 MB
Release : 2019-11-14
Category : Law
ISBN : 1509919821

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How do you protect rights without a Bill of Rights? Australia does not have a national bill or charter of rights and looks further away than ever from adopting one. But it does have a range of individual elements sourced from common law, statute and the Constitution which, though unsystematic, do provide Australians with some meaningful rights protection. This book outlines and explains the unique human rights journey of Australia. It moves beyond the criticisms long made of the Australian position – that its 'formalism', 'legalism' and 'exceptionalism' compromise its capacity for rights protection – to consider how the many elements of its novel legal structure operate. This book analyses the interlocking legal framework for the protection of rights in Australia. A key theme of the book is that the many different elements of a fragmented scheme can add up to something significant, albeit with significant gaps and flaws like any other legal rights protection framework. It shows how the jumbled influences of a common law heritage, a written constitution, differing paths taken by jurisdictions within a single federal state, statutory and common law innovations and a strong dose of comparative legal influences have led to the unique patchwork of rights protection in Australia. It will provide valuable reading for all those researching in human rights, constitutional and comparative law.

Author : Janina Li Boughey
Publisher :
Page : 447 pages
File Size : 14,6 MB
Release : 2014
Category :
ISBN :

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It is commonly asserted that bills of rights have had a 'righting' effect on the principles of judicial review of administrative action and been a key driver of the modern expansion in judicial oversight of the executive arm of government. In making this argument, many point to the apparent 'formalism', 'legalism' and 'conservatism' of Australian administrative law as evidence, noting that Australia is an outlier amongst common law jurisdictions in having neither a statutory nor a constitutional framework to expressly protect human rights. Various other claims about the interaction between bills of rights and the scope of judicial review of administrative action have also been made by commentators and judges. However, for the most part these claims remain just that-as there has been limited detailed analysis of the issue, and no detailed comparative analysis. This thesis makes a contribution to this relatively under-analysed topic by comparing the development of the principles of judicial review of administrative action in Australia and Canada in recent decades. It examines the procedural and substantive limits that courts in each jurisdiction place on administrative powers, as well as the intensity of judicial scrutiny of administrative action, with the aim of assessing whether Canadian administrative law shows evidence of having become 'righted' or 'stifled' as a result of Canada's extensive human rights framework.

Author : Jeffrey Goldsworthy
Publisher : Routledge
Page : 323 pages
File Size : 26,15 MB
Release : 2017-11-30
Category : Law
ISBN : 1351151223

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Australia is now the only major Anglophone country that has not adopted a Bill of Rights. Since 1982 Canada, New Zealand and the UK have all adopted either constitutional or statutory bills of rights. Australia, however, continues to rely on common law, statutes dealing with specific issues such as racial and sexual discrimination, a generally tolerant society and a vibrant democracy. This book focuses on the protection of human rights in Australia and includes international perspectives for the purpose of comparison and it provides an examination of how well Australian institutions, governments, legislatures, courts and tribunals have performed in protecting human rights in the absence of a Bill of Rights.

Author : Dean R. Knight
Publisher : Cambridge University Press
Page : 309 pages
File Size : 22,8 MB
Release : 2018-04-19
Category : Law
ISBN : 1108119107

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The mediation of the balance between vigilance and restraint is a fundamental feature of judicial review of administrative action in the Anglo-Commonwealth. This balance is realised through the modulation of the depth of scrutiny when reviewing the decisions of ministers, public bodies and officials. While variability is ubiquitous, it takes different shapes and forms. Dean R. Knight explores the main shapes and forms employed in judicial review in England, Canada, Australia and New Zealand over the last fifty years. Four schemata are drawn from the case law and taken back to conceptual foundations, exposing their commonality and differences, and each approach is evaluated. This detailed methodology provides a sound basis for decisions and debates about how variability should be brought to individual cases and will be of great value to legal scholars, judges and practitioners interested in judicial review.

Author : Stephen Gardbaum
Publisher : Cambridge University Press
Page : 275 pages
File Size : 27,79 MB
Release : 2013-01-03
Category : Law
ISBN : 1107009286

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Stephen Gardbaum proposes and examines a new way of protecting rights in a democracy.

Author : Ijaiya, Hakeem Olasunkanmi
Publisher : Malthouse Press
Page : 219 pages
File Size : 11,12 MB
Release : 2017-05-05
Category : Law
ISBN : 9789584466

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This book, Judicial Approach to Interpretation of Constitution: A Study of Nigeria, Australia, Canada and India, is the outcome of a doctoral study of the judicial interpretation of the constitutions in selected Commonwealth jurisdictions, and a survey of the theories of constitutional interpretation and adjudication, the rules applied by the courts in the interpretation of the provisions of the constitutions, and determined the extent to which the existing approaches to the interpretation of the constitution have hindered the development of constitutional jurisprudence in those countries. In all, the statutes and constitutions are expressed in English language and some words are prone to distortions, thereby requiring the need for the courts to discover the intention of the legislators when interpreting such statutes and constitutions. It is further observed that the theories and rules of interpretation currently adopted by the courts are conflicting, and this is partly due to vagueness and also that in many cases, where a rule appears to support a particular interpretation, there is another rule, often of equal status, which can be invoked in favour of an interpretation which could lead to different result. The general conclusion is that the existing approaches to constitutional interpretation are somewhat inefficient and inadequate to enable the courts to effectively discover the intention of the legislators, and therefore the courts should be allowed to examine all relevant parliamentary documents and debates.

Author : Nick O'Neill
Publisher : Federation Press
Page : 804 pages
File Size : 12,56 MB
Release : 2004
Category : Juvenile Nonfiction
ISBN : 9781862874145

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This new edition of Retreat from Injustice has the strengths and style of its predecessor: the account of human rights in Australia is firmly grounded in historical and international contexts; the availability and limitations of rights and freedoms are clearly detailed and illustrated with cases; and a particular spotlight is placed on key current human rights issues including terrorism, indigenous issues and asylum seekers.

Author : Steven Gow Calabresi
Publisher : Oxford University Press
Page : 384 pages
File Size : 37,99 MB
Release : 2021-04-13
Category : Law
ISBN : 0190075791

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This two-volume set examines the origins and growth of judicial review in the key G-20 constitutional democracies, which include the United States, the United Kingdom, France, Germany, Japan, Italy, India, Canada, Australia, South Korea, Brazil, South Africa, Indonesia, Mexico, and the European Union, as well as Israel. The volumes consider five different theories, which help to explain the origins of judicial review, and identify which theories apply best in the various countries discussed. They consider not only what gives rise to judicial review originally, but also what causes of judicial review lead it to become more powerful and prominent over time. Volume One discusses the G-20 common law countries and Israel.

Author : Mark Tushnet
Publisher : Princeton University Press
Page : 288 pages
File Size : 12,94 MB
Release : 2009-07-20
Category : Political Science
ISBN : 1400828155

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Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.